Allahabad High Court
Kailash Pati Asthana vs The Authorised Officer, State ... on 9 August, 2011
Bench: Amitava Lala, Ashok Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. 03
CIVIL MISC. WRIT PETITION NO. 44852 of 2011
Kailash Pati Asthana ...........Petitioner
Vs.
The Authorized Officer, State Bank of India, Stressed Assets Management Branch Lucknow/Branch Office Main Branch, Allahabad and others ...........Respondents
Present:
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Ashok Srivastava)
Appearance
For the petitioner : Mr. Shyamal Narain
For the respondents : Ms. Manisha Ambwani, Advocate led by Mr. Vipin Sinha, appearing for respondent nos. 5 to 8.
: Standing Counsel.
Amitava Lala, J. Petitioner claims to be a tenant of private respondent nos. 5 to 8. The grievance of the petitioner is that because of non payment of certain loan taken by the landlord/s respondent nos. 5 to 8 a proceedings was initiated by the Bank under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called as the 'Act, 2002') in respect of the mortgaged property and it approached the District Magistrate under Section 14 of the said Act to secure and confirm the possession of the property in question. The petitioner claims to be a statutory tenant of that property since 1981 under The Uttar Pradesh Urban Building (Regulation Of Letting, Rent And Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter called as the 'Act, 1972' ). He wants to say that he does not want to stand in the way of taking symbolic possession as per law but before taking physical possession of the property of the owner, his right is required to be determined.
According to us, if petitioner is a statutory tenant, remedy is available under the Act, 1972 itself but a conflicting situation has arisen here whether the right under such Act can help the petitioner to override the provisions of the Act, 2002 or not. To that extent we have considered two Division Bench judgements. One is of Madras High Court reported in AIR 2007 MADRAS 148 (Sree Lakshmi Products Rep. By its Partner Vs. State Bank of India) and the second is of ours High Court in Writ-C No.-39579 of 2010 (Bhagwat Prasad Gupta Vs. State Bank of India And Others) where it has been held that the tenant's right, if any, under the local law will be overridden by the Act, 2002. That apart, our own view is that tenant's right is flowing from the right of the landlord. Therefore, if landlord's right is challengeable, tenants will have to suffer. Tenant's right is subject to the right of the landlord.
Now the question arose whether the tenant is remedyless or not. Both the Division Benches have held that petitioner-tenant cannot be debarred from getting an opportunity of hearing of his case under Section 17 of the Act, 2002.
We have carefully gone through the Act, 2002 and we find that under Section 17 there is a right to appeal before the Debt Recovery Tribunal. Starting part of Sub Section (1) is as under:
"Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorized officer under this Chapter, [may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken."
According to us, certain words in this provision are very important to note. Those are "any person (including borrower)" and the word "measures". Had there been the exclusion of any person other than the borrower, there was no occasion to incorporate the words "any person (including borrower)" in the sub-section. Therefore, legislature is very clear in saying that Section 13(4) will be effective against the borrower who failed to discharge his liability but by action or measure if any person is affected, he can definitely have opportunity of hearing in the proceeding under Section 17 itself to avoid multiplicity. This is inevitable situation when the Act, 2002 overrides the local laws.
This situation can be visualized upon going through Section 34 & 35 of the Act, 2002. When Section 34 says that Civil court does not have jurisdiction, Section 35 clearly says that the provisions of this Act shall override other laws.
Therefore, we are of the view, that the only remedy is open to the petitioner to approach the Debt Recovery Tribunal under Section 17 of the Act, 2002 even not being borrower but as an aggrieved being affected with the situation. Hence, we cannot admit the writ petition. Thus, it is dismissed, however, without imposing any cost.
In any event, passing of this order will in no way affect the right of the petitioner to proceed in accordance with law or on the basis of the observations made by this Court, as early as possible, preferably within a period of 45 days from the date certified copy having been ready in the department for delivery.
(Justice Amitava Lala)
I agree.
(Justice Ashok Srivastava)
Order Dated: 9.8.2011
Sandeep
